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Published: Fri, 02 Feb 2018
Issues With The European Arrest Warrant International Law Essay
This thesis shall be focusing on the European Arrest Warrant and some issues that arise when using this legal tool for extraditing criminally liable persons from one Member State to another, within the European Union, for the purpose of criminal prosecution. For better clarity the reasons that have led to creation of the European Arrest Warrant (further referred to as EAW) shall be depicted alongside its procedures and principles. Most emphasis shall be devoted to investigation and assessment of the issue of effectiveness and fairness of the EAW. This shall be demonstrated with important cases which shaped the opinions of this legal tool alongside with examining whether the original principles of the EAW, which were set out during its establishment, were upheld. Eventually advantages and disadvantage shall be discussed; any possible misuse of this tool shall be identified and areas and matters that may be in need for improvement shall be addressed.
EAW- development, description, procedure,
The advancing diminishment of border regulation among the European Union Member States with the aim to encourage and aid free movement of residents and products within the EU, has negatively resulted in lesser control over criminal activities and this situation has made it possible for criminal offenders to function on an international level. The terrorist attacks of 9/11 in the USA and the following attacks in numerous other countries have prompted the governments to seek means to ensure that offenders committing serious crimes shall be managed by a consistent method throughout the EU.
The fact that the law establishment and legal systems of the Member States have not been using unified scheme for fight against crime and would follow their individual legal procedures has resulted in deficient communication and co-operation between individual states when dealing with criminal procedures and prosecutions. To tackle this issue and concurrently increase the efficiency of legal procedures on international level between Member States, several methods have been proposed and designed. This was aimed to eventually result in a unified legal procedure system that could function within EU effectively and efficiently and also to ensure that the rights of persons who are involved in criminal activities are secured and protected under all circumstances regardless of their location within the European Union.
Taking into consideration above mentioned situation and the determination of the authorities to improve it the scheme for EAW was created. This was a legal tool which would be applicable in each Member State across The EU and was supposed to substitute for the previously used measures of extraditing persons from the territory of one state to another. As opposed to the former extradition system, the EAW would ensure that the Member States would be deprived of the entitlement to refusal to relinquish their residents to other countries on the basis that they reside within their borders and are state citizens. The procedure would be simplified to ensure faster and more efficient operation of the legal proceedings. This would create a situation which would be to the best benefit of not only citizens but also to the best interest of legal and judicial authorities in delivering justice.
Arrangement in relation to the EAW has been first established in Belgium at a summit in 2001 and as a result the formation Council Framework Decision on the EAW and the surrender procedures between Member States  (further referred to as The Council Framework Decision) followed. This law of the EU has been implemented and became enforceable by all the Member States by November 2004.
In regards to procedure related to the EAW, only a competent official legal authority that has been approved for this function can issue a European Arrest Warrant. This authority subsequently completes an official EAW document where it stated personal details of the alleged criminal, details of the crime that has been committed alongside with any relevant circumstances surrounding the event and also the custodial sentence which would be sought to be enforced if proven guilty of the charges under the domestic legislation  . This form is then forwarded to responding legal authority of another Member State where the alleged criminal resides at that time period. In case of lack of data as to the current position of the suspect, the EAW is dispensed to all the states of the EU by way of authorised agencies.
Subsequently when the suspect has been detained in custody by the responding Member State, the authorities need to ensure that basic conditions are met. Among these are informing the detainee of the charges in regards to the EAW, and he or she is provided with the access to a legal representative and a translator if necessary.
The suspect shall be also informed of the option for him to approve of his or her surrender to the issuing state alongside with complete information about the impact this will have on the legal proceedings. If the voluntary consent is obtained, the authority of that particular Member State shall attain the concluding verdict regarding the fulfilment of the EAW in the period of ten days subsequently to obtaining the consent from the alleged offender.
The time requirements for the verdict regarding the execution of the EAW are specified in Article 17  of the Council Framework Decision and the subsequent time requirements for transfer and surrender of the alleged criminal offender have been established in Article 23  .
Furthermore the Scope of the EAW has been outlined in Article 2  of the Council Framework Decision specifying crimes and offences that can give rise to issuing an EAW.
The first of the Member States that took advantage of the new concept of the EAW and issued one was Spain in 2004 when a Swedish national Michael Kurt, in relation to whom charges for driving under influence and drug related offences were issued, was taken into custody and subsequently surrendered to the Swedish authorities  .
In 2005 a report evaluating the operation of use of the EAW has been published by the European Commission and came to the conclusion that the Council Framework decision has been generally implemented effectively and did fulfil the purpose and aims established when the scheme was initially designed  . Even though initially this new method did receive very positive response from legal and judicial authorities, several years after the EAW has been implemented and used, numerous cases have revealed disadvantages and faults of the system and have lead to increased scepticism towards the current arrangement. Some of these cases shall be outlined and described, followed by the evaluation whether the initial principles behind the creation of the EAW have been upheld to the benefit of citizens of the European Union and whether it has indeed been an advance in fight against crime.
The case of Andrew Symeou is considered as one the most controversial in regards to the EAW and its negative effects on human rights. Andrew Symeou was visiting Greece on holidays in 2007. During his stay, Jonathan Hiles, a British citizen has obtained fatal head injuries due to a fall caused by a person that has punched him. Andrew has been arrested by the UK police at his residence in 2009 and placed into custody. The arrest was based on the EAW that has been issued on the grounds that Andrew has caused the death of Mr Hiles in June 2008. Subsequently he has been transported and placed into detention in Greece in July the same year.
The controversy surrounding this case has been focused mainly on the evidence collected against Mr. Symeou. According to the records the description given on first instance by the witnesses did not correspond with Mr. Symeou´s appearance and his location at the moment of the incident. Furthermore numerous witnesses changed their statements and have claimed to be forced to state against Mr. Symeou by use of force by the Greek authorities alongside with manipulating them to indicate Mr Symeou on provided photographs for identification. The trial has been numerous times postponed for various reasons one being for example incompetence of the translator provided for the court. The judgement is yet to be reached even though Mr Symeou has been held in custody since 2009.
In the extraditing system that has been used before the implementation of the EAW, the authorities have had the right to refuse to surrender its nationals and prior to the transfer of the alleged criminal a judge would evaluate the case based on evidence and only approve of the surrender in a situation that the case would be sufficiently serious. This right has been removed by the EAW and even though the UK courts have widely criticised the proceedings and transfer of Mr Symeou due to the fact that the evidence provided was less than sufficient to indicate clearly that Mr Symeou was indeed involved in the occurrence that caused the death of Mr Hiles, after an EAW has been issued, the refusal was not available and the authorities were obligated to surrender Mr Symeou.
Further grounds for refusal to surrender Mr Symeou by the British authorities could have been the apprehension about the Greek authorities infringing with the suspect´ s or witnesses´ human rights. However, in regards to the EAW within the EU the courts are presumably holding the same standard and duty of care, there are no provisions that would allow certain countries to categorise others as not being adequate for their nationals to be tried in. Mr Symeou has been dismissed from custody on bail, however without the option to leave Greek territory and is currently awaiting his trial when the final judgement is yet to be reached.
This case has lead to a substantial scepticism and criticism in regards to the EAW upholding the values of human rights and activist movements for human rights announcing and publishing their concerns regarding this particular issue. For example a UK based organisation Freedom Association  published a statement outlining particular points that are in breach of fundamental freedoms and rights of citizens  . They have emphasised the detriment of emphasis placed on ensuring the protection of these rights and the standards of the legal system and the increase of emphasis place on the automaticity and acceleration of the proceedings.
This case has highlighted several issues that the implementation of use of the European Arrest Warrant has caused in regards to so called “double criminality”  and also in regards of proportionality and human rights of the citizens of the EU.
In 2000 Jacek Jaskolski  , a Polish citizen, has used an ATM machine and withdrew a financial amount that has caused him to exceed the financial limit that has been previously approved by his bank. Mr Jaskolski has surpassed the limit for allowed overdraft of approximately 12 000 Euro by the amount of approximately 3000 Euro, which he claims was not done intentionally but by mistake. Subsequently, as a result of severe medical problems he became unemployed and due to this fact the instant repayment of the overdraft amount, has become unachievable. Being in this situation, the only possible solution was for Mr Jaskolski to arrange instalment payments with his bank. Due to the previously mentioned medical condition, Mr Jaskolski did not manage to comply with the scheduled instalment payment which resulted in the repossession procedure of Mr Jaskolski´s house. The residence of family Jablinski has been repossessed and auctioned to compensate for the created debt. The financial amount obtained by the bank from the sale of the residence has been substantially higher than the created debt however Mr Jaskolski did not receive the residual balance. Subsequently in February 2004 Mr Jaskolski obtained confirmation from the regional Civil Court that the requirement of him compensating the bank for his financial debt in full has been satisfied. Afterwards he has relocated with his family to the UK where he has found employment as a college teacher of science.
In the time period of 2004-2010, Mr Jaskolski was not contacted by any authorities regarding the occurrence in Poland and in 2007 when he and his wife visited their home country for the occasion of their daughter´s wedding, no problems occurred on the time of his arrival to Poland or his stay there for a month. Therefore it was most surprising to the Jaskolski family that in July 2010 Mr Jaskolski has been taken into custody by police authority in the UK based on the EAW that has been issued on the grounds of theft that has supposedly occurred in the 2000. Under the Polish legislation, as opposed to the one in the UK, reaching an overdraft beyond the authorised limit falls under the category of a criminal offence.
Additionally, under the legislature in Poland, the authorities are obligated to prosecute all offences without distinguishing the severity of the crimes that have been committed. Therefore due to the fact that the alleged crime has occurred on the Polish territory, the authorities were compelled under the national law to prosecute him and therefore the EAW was issued. This case for example in the UK would only result in civil proceedings.
In April 2011 the Magistrate´s Court in Westminister has declined the execution of the EAW based on the facts that they were provided with o the basis that the grounds for extradition were inapplicable to the case since the financial debt in question has already been paid.
However if the extradition was approved, Mr Jaskolski would have been placed into custody for numerous months prior to the trial and his opportunity to establish his innocence. Although the extradition to Poland shall not be executed, the EAW is still in operation and therefore Mr Jaskolski is confined to residency within the UK borders unless the Polish authorities officially revoke the EAW.
The decision of the Magistrate´s Court has fortunately been in favour of Mr Jaskolski however this case depicts that the EAW is not used in a manner that this legal tool has been created for. The EAW was originally created to combat international organized crime scene and terrorist organizations. It was supposed to lead to unified extradition practice within the EU to the benefit of official authorities and citizens likewise. However with such major differences among each of the Member States´ legislations, different approaches to prosecution, investigation and definitions of crimes as such, the removal of safeguard of “double criminality” as applied by the previous extradition system may only cause diminishment in fairness for the citizens of the EU.
Another example of lack of the “double criminality” principle is a case of a Australian citizen who has been arrested in the UK. Mr Toben has published a statement on a website and expressed his disbelief in the occurrence of Holocaust. Upon arrival to the UK he was arrested on the grounds that an EAW has been issued on his person by German authorities who recognise “Holocaust denial” as a criminal offence and based the EAW on the fact that the website was accessible in their territory and therefore the German jurisdiction was applicable.
Even though, in relation to the issue of “Holocaust denial” the boundaries should be established and this behaviour should not be encouraged, this case paves a path for cases where persons could be prosecuted for expressing their opinions with which certain governments may not agree and could issue an EAW on those grounds since the internet is accessible globally. This could infringe one of the basic human rights- the freedom of speech.
The substantial number of cases, where one state issues EAW based on offences that would not amount to a crime satisfying the list of crimes valid for issuing EAW as defined in the Council Framework Decision in another Member State and additionally raising the financial amount consumed by the transports and may infringe human rights, clearly supports the arguments that EAW in its current form is not appropriately used and does not serve its initial and core purpose.
The case of Deborah Dark  is one of the most complicated and controversial in relation to the EAW. It portrays the lack of organization and consistency when an EAW is issued alongside the effect it can have on a person´s life even though issued many years after the criminal offence occurred.
In 1988 Deborah Dark has travelled to Spain by a rented car accompanied by her daughter and her partner. On her return route she when crossing the boarders, the police patrol has discovered considerable amount of marihuana placed in the space below the flooring of the vehicle and she has been subsequently placed into custody and her daughter into social service centre.
Deborah Dark was detained in 1989 in France due to the alleged criminal activity related to controlled substances. She participated on her trial later that year and the court has established that she was not guilty of the alleged offences. Subsequently she returned back to Great Britain.
However the verdict has been appealed against and the court has ruled in favour of the prosecutor. A six years prison sentence has been issued. The trial took place in 1990 after she has already returned to the UK. During this time she or her lawyer were not provided with any updates about her case, she was not notified about the trial or the time period she was expected spend in custody, she was not present during the trial nor had she any legal representative to plead her defence.
In 2007 when Deborah Dark was travelling on holidays upon reaching the Turkish borders, she has been detained and was not explained of the grounds for her detention. Upon her return to Britain after being released from Turkish custody, she sought the UK authorities to enquire whether there has been a warrant issued for her arrest however she received negative answer.
In 2008 Spanish authorities have placed her into detention when she was returning to England. The reasoning behind her arrest has been that there has been an EAW issued by France in 2005 on the grounds of the cannabis possession from the trial in 1989 and overturned judgement that she was not aware of requiring her to be transported to France to fulfil her custodial punishment.
After a hearing, the Spanish court held that the extradition shall not be granted due to the substantial time period that has exceeded any reasonable grounds for such a delayed issue of the EAW.
The British Magistrate´s Court in 2009 has reached the same verdict supporting the arguments and decision of the Spanish judges. The trial took place due to the EAW issued by France which was still in operation and therefore Deborah was placed again into custody upon reaching the UK borders.
As a result of enormous media attention this case has gained a considerate amount of publicity and considering international organizations like Fair Trials International  have been actively involved in the development of the case, the EAW issued by France has been revoked in May 2010.
This case portrays a major issue that concerns the EU officials. This is the issue of warrants being issued after a significant period after the time has passed. This period can be from several years up to over a decade as in above described case. It is obvious that a reasonable judge will not find the grounds for extradition sufficient due to the time period being excessive and therefore for example the witnesses would not state the facts correctly or possibly documents may be missing to create sufficient grounds for a fair case. With issue of these long overdue warrants, the states spent significant financial resources for pursuing and executing the EAW be it detention costs or transport of the suspects.
Furthermore, the Council Framework Decision did not implement any time limit by which the validity of the EAW would be terminated. This can result in a situation where a person will be confined to one Member State purely because the issuing state would try to pursue the prosecution even though the receiving state has refused to execute the EAW and transport the alleged criminal or due to substantial amount of cases and legal proceedings the court that has issued the warrant may not review the case for a long period of time. This would result in the person, against whom the EAW has been issued not being able to leave the Member State which has refused the extradition. In case the person would leave, he or she risks being arrested and placed into custody while this particular court would decide whether to execute the EAW again and if the outcome is not in their favour they may face extradition to the issuing state even though their case has already ruled in their favour.
The case of Joseph Mendy depicts what is considered the most criticised aspect of the use of the EAW and that is the issue of “proportionality”. Member States issuing the EAW and prosecuting alleged criminals for minor and petty crimes is clearly in breach of the principles of the initial creation of the system and eventually increasing the custody and proceeding costs of these persons which essentially results in unnecessary financial burden for the government funds and the tax-payers.
Joseph Mendy travelled with two companions on vacation in 2003 to the Canaries which belong under the Spanish jurisdiction. During their stay the Spanish enforcement officers have approached them in their accommodation area and demanded that Joseph and his companions escort them to their suites which were subsequently searched.
The police authorities have placed them into custody on the grounds of counterfeiting currency as the search has revealed two forged bank notes of the nominal value 50 Euros on the premises where the persons were residing at that time and another bank note was discovered during search of the accused, on one of Joseph´s companion. The police authorities have informed the suspects that their use of other two forfeited bank notes has been detected on two separate locations in the place of their stay.
During their custodial stay, they were interrogated constantly about their production of the counterfeited currency, their use of the currency and their claimed that they have encountered racial discrimination and inhumane treatment from the Spanish authorities and the prison officers. The police have during their investigation established that the purchase of a watch that Joseph acquired the counterfeited currency has not been used.
The three persons have stood a trial in subsequent couple of days and were notified that the authorities will inform them further about the proceedings after their release and that they were allowed to depart back to the UK.
Joseph Mendy and his companions have returned to the UK and were not contacted by the Spanish authorities about any progress of their proceedings until 2007when Joseph´s family was contacted by agency in charge of organised crime. Following the phone call, Joseph has contacted the official authorities and established his willingness to go to London and deal with the situation. However he was not contacted again by the official authorities and upon his next communication with the authorities which he initiated he was informed that the district police authorities in the place of his residence were forwarded his case. Subsequently he has been arrested on the grounds of the EAW which has been issued the same month that his family has been contacted by the agency designed to combat organised crime.
Joseph Mendy had been dismissed from the custody after a bail was established and paid. Subsequently he appealed opposing the exercise of the EAW and his following surrender to Spanish authorities. However due to previously mention removal of certain safeguards against the exercise of the EAW and due to the fact that the Spanish Authorities did have sufficient ground for a case, the UK judicial authorities were obligated to approve of the surrender of Joseph Mendy. He has been surrendered to the Spanish officers in July 2007 and escorted to Madrid to participate on his trial.
At the following his case being presented to the court, the judicial authorities have established that this person was not suitable for dismissal from custody on bail due to the fact that he might attempt to flee the country to avoid further prosecution and subsequent judicial break time period has caused that Joseph Mendy has been placed into custody for prolonged time period to await his option to plead his innocence and proceed with his case.
While being under the custodial sentence, he was notified of the fact that prior the issue of the EAW by the Spanish authorities they attempted to contact him about the development and subsequent measures to be taken regarding his alleged criminal offence. However the documents were forwarded not to the place of their permanent residence but to the place that they were residing at the time of the offence occurrence which was the hotel in the Canaries.
Following the time period already being held in custody, in September Joseph´s legal representative informed Mr Mendy that supposing that he carried on with his plea of innocence, there is a high possibility of his custodial sentence being extended to the increase of additional time period over a year prior to his further legal process. Conversely in case of admitting to committing the alleged offence and his plea changing to status of guilty, considering the lack of entries on his criminal record this would allow him to achieve the judicial ruling of suspended sentence and a financial penalisation. Under these circumstances Joseph Mendy has pleaded guilty and was issued a suspended sentence of 24 months and a financial penalisation of 600 Euros.
This case clearly portrays the lack of efficiency that prosecution via the tool of EAW of minor crimes, considering the costs of the custodial accommodation alongside with the transfer and repeated prosecution costs would amount to higher financial amount that the financial penalisation issued, not only regarding the financial aspect of the EAW proceedings but also the excessive time that the alleged criminals have to await their trials which considering the increase of issuing EAW will only worsen. This case has due to the crucial issues it highlights even discussed in the House of Commons where it was brought up by Frank Dobson MP  .
The above described cases depict the four most criticised aspects of the EAW.
Human rights violations
Absence of “the double criminality” principle
Issuing EAW after excessive period of time after the occurrence of the offence
The principle of “proportionality” – prosecution
However this was only a slight fracture of the cases where these issues have been highlighted including for example cases where a polish builder was extradited on grounds of theft. He stole chocolate bars of nominal value of approximately 80 Euros. Kris Lewandouski  has been arrested and is facing an extradition to Poland based on him being accused of unlawful possession of a small number of mobile phones which took place over six years ago. In the case of Zak v Regional Court of Bydgoszcz, Poland  , the execution of EAW was approved for purchasing a mobile phone that was found to be stolen and charged for ‘unintentionally receiving stolen goods’.
According to the statistics published, the use of EAW has been estimated to be in an escalating manner  . Furthermore some reports from sources related to the Council of the European Union have suggested that the EAW has been used in cases which were classified as minor offences and therefore it was not proportionate to extradite citizens for these offences. Among the alleged offences were detention of 0,45 grams of cannabis, theft of two car tyres or a theft of a piglet  . The Fair Trials International, NGO that has been working on improving judicial standards and conditions in cases where the human rights of the suspects were violated, has published several evaluation reports alongside with proposed improvements.
In conclusion, it can be clearly stated that the EAW has not been used for coping with the situation of international crime and terrorist activities. Although it has provided a unified scheme for extraditing offenders from one Member State to another and the extradition time limit has significantly decreased, the judicial systems and procedures are far from unified and therefore assuming that they are on the same level of standard and automatise the extradition process without possible safeguards and very limited grounds for refusal provided to the receiving state can result in breach of human rights, extraditing people for crimes not recognised by other Member states like for example “holocaust denial” recognised in Germany could interfere with the freedom of speech and funds provided to the governments for the purpose of service of justice will be spent on extraditing and prosecuting offenders committing minor crimes. Based on these grounds and all the evidence provided above it is clear that the EAW system needs a reform which would restrict its use only for serious crimes and ensure that i
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